Opposition Brief — Tilton v. Richardson

No. 93-882

In The

Supreme Court of the United States

October Term, 1993

+

ROBERT G. TILTON,

Petitioner,

vs.

GARY L. RICHARDSON, OLE ANTHONY,

HARRY GUETZLAFF, C. TONY WRIGHT,

DAVID BURROWS, AND GEORGE A. OTSTOTT,

Respondents.

*

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

+

BRIEF IN OPPOSITION OF RESPONDENTS’

GARY L. RICHARDSON, OLE ANTHONY,

HARRY GUETZLAFF, C. TONY WRIGHT,

DAVID BURROWS, AND GEORGE A. OTSTOTT

o

FELDMAN, HALL, FRANDEN,

Wooparp & FArris

JoserH R. Farris, OBA #2835

Counsel of Record

Jopy R. NatHan, OBA #11685

]. Davip Mustain, OBA #13132

525 South Main, Suite 1400

Tulsa, OK 74103-4523

Telephone: 913/583-7129

Facsimile: 918/584-3814

Counsel for Respondent

Gary L. Richardson

{Additional Counsel Listed On Inside Cover]

i Rue he"

;

e.

i

te

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

DANA BOWEN

Gary L. RICHARDSON

RICHARDSON, Stoops & KEATING

6846 S. Canton, Suite 200

Tulsa, OK 74136-3414

918/492-7674

Fax: 918/493-1925

Attorneys for Gary Richardson

MicHaAEL F. Linz

400 Katy Building

701 Commerce Street

Dallas, TX 75202 4518

214/748-1948

Fax: 214-748-9449

WILLIAM H. HINKLE

320 South Boston Ave.

Tulsa, OK 74103

918/584-6700

Fax: 918/584-6767

Cooperating Attorneys

ACLU of Texas & Oklahoma

Attorneys for Ole Anthony and

Harry Guetzlaff

STEVEN W. VINCENT

3314 E. 51st St. Suite 201-B

Tulsa, OK 74135-3527

918/743-3700

Fax: 918-743-3798

Attoriuey for C. Tony Wright and

David Burrows

Martin R. Merritt

Orstotr & ASSOCIATES

3611 Fairmount Street

Dallas, TX 75219

1/800/882-1402

Fax: 214-522-2610

Attorney for George A. Otstott

TABLE OF CONTENTS

Page

lL STATEMENT OF THE CASI 3

Il. STATEMENT OF THE ISSUI 5

\. THE ALLEGATIONS 5

B. THE RULING 7

lll. REASONS FOR DENYING CERTIORARI §

\. ELEMENTS OF A § 1985(3) CLAIM Y

THIS COURT HAS ALREADY DETER-

MINED THE EXACT ISSUE RAISED BY

PETITIONER 14

( THERE IS NO LEGITIMATE CONFLICT

BETWEEN JURISDICTIONS 1s

laylor is not applicable because it was

decided before Scot? ; 1Y

2 [he tacts in Taylor support a finding of

invidious class based animus while the

facts in the present case do not 19

D. TILTON’S ASSERTION THAT THERE IS

STATE ACTION MERELY RESTATES THI

MERITS OF TILTON’S CLAIM AND DOES

NOT PROVIDE A REASON FOR THIS

COURT TO GRANT CERTIORARI ..... 23

OTHER LEGITIMATE REASONS EXIS1

FOR UPHOLDING THE RULINGS OT]

THE TRIAL COURT AND THE TENTH

CIRCUIT... i eer Lanne We

IV. CONCLUSION 29

TABLE OF AUTHORITIES

Page

Bray v. Alexandria Women’s Health Clinic, 113

AEs Sto, Nee Mee OO CISION een casas passim

Cantwell v. Connecticut, 310 U.S. 296, 84 L.Ed.

Rae, Ge ORs A LIE. airs Seine Sek ke ee ek kD 11

Carpenters v. Scott, 463 U.S. 825, 77 L.Ed.2d 1049,

PR Ae ee ON ck i a ae ok oo bod ees em ss 19

Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95

Es BA ROR Cone ee oars oo es pe es 16, 18

Eastern Railroad Presidents Conference v. Noerr

Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5

Le ee ee eee eet ee 28

Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct.

OBO, 9 L.Ed. 2k G97 CTOGSD on vc oo nw heen 24

Fink v. Sheridan Bank, 259 F.Supp. 899 (W.D. OKI.

NN ee eA or ae Cea aL ete ee ee ed g

Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 98

3Ct. 1729, 56 L.Ed.2d 185 (1978)...........25..... 26

Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69

Se BEE EE oe es oe ee ee 24

Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790,

pa Me Re EC a Lg 9} ea passim

Louisville Gas & Electric Co. v. Coleman, 277 U.S.

32, 48 S.Ct. 423, 72 L.Ed. 770 (1928) .............. 10

ill

TABLE OF AUTHORITIES — Continued

Page

Lugar v. Edmondson Oil Co, 457 U.S. 922, 102

S.Ct. 2744. 73 (Bb 2a Se Ci eee 25

McDonald v. Smith, 472 U.S. 479, 105 S.Ct. 2787,

86 Ld 2a 388 (298s rae eee eee 28

Moose Lodge No. 107 vy. Irvis, 407 U.S. 163, 92

S.Ct. 1965, 32 L.BG.20 Ger (8972hinw tee eee 26

New York Times Co. v. Sullivan, 376 U.S. 254

(TOBE a ee cn in a ee ee ee ee eee ee 26

Paul v. Watchtower Bible and Tract Society, 819

F.2d 875 (9th Cir. 1987), cert. denied, 484 U.S. 926.... 26

Shelley v. Kramer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed.

BEG) CUR ag ies ee a ee eee 25

Singer v. Wadman, 745 F.2d 606 (10th Cir. 1984)...... 9

Smith v. McDonald, 895 F.2d 147 (4th Cir. 1990)..... 28

faylor v. Gilmartin, 686 F.2d 1346 (10th Cir. 1983)

Siddebis uss i ceveTeeEe Fy bat So as Ee eee ee a a oe

laylor v. Nichols, 558 F.2d 561 (10th Cir. 1977)...22, 23

United Broth. of Carpenters & Joiners v. Scott, 463

U.S. 825, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983) passim

United States v. Harris, 106 U.S. 629, 1 S.Ct. 601,

27 Ld SOU 4 2 a ee eee Pas

United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170,

16 L.Ed 2a 230 (USCS ae oe eee 25

Wilhelm v. Continental Title Co., 720 F.z

(ithe: Cie. 19RAY oc ee eee

No. 93-882

+

In The

Supreme Court of the United States

October Term, 1993

.

ROBERI LTOD

RICHARDSON, OLE ANTHONY

HARRY | ZLAFF, C. TONY WRIGHT

D I O ) GEORGI OTSTOTI

.

On Petition For A Writ Of Certiorari

Ilo The United States Court Of Appeals

For The Tenth Circuit

S

BRIEF IN OPPOSITION OF RESPONDENTS’

GARY L. RICHARDSON, OLE ANTHONY,

HARRY GUETZLAFF, C. TONY WRIGHT,

DAVID BURROWS, AND GEORGE A. OTSTOTT

>

IR ( t (4 lj tol | t

, ‘ tt eVS it lilton’s more out

ke rit the religious community. Tilton alleges

the Respondent nspired with law enforcement officials

| m Oki, hon | l¢ S ind with A BC News Prim

n order to brir ibout the general downfall of

| ;

The “conspiratorial acts” of which Tilton complains

are public statements by some of the Respondents critical

of Tilton (a public figure) and allegations contained in

lawsuits filed against Tilton and his ministry.

lilton’s Complaint relied on 42 U.S.C. § 1985(3) as the

remedial vehicle tor relief. As diversity jurisdiction was

unavailable, this federal statute was also his sole basis for

federal jurisdiction. Tilton asserted pendent state law

claims of libel and slander, and additionally sought the

trial court’s equitable power to “enjoin further libelous

and slanderous statements.”

[he Respondents filed motions to dismiss under Rule

12 of the F.R.C.P. Following a hearing on the motions,

lilton’s federal claim was dismissed, however, the trial

court retained jurisdiction to allow an interlocutory

appeal pursuant to 28 U.S.C. § 1292(b). Tilton sought the

trial court’s reconsideration of its dismissal based in part

on his proffered Amended Complaint which reasserted

that his claim was actionable under § 1985(3). Recon-

sideration was denied, and Tilton appealed. The Tenth

Circuit held that the District Court had jurisdiction over

the matter, and that dismissal was proper because Tilton

failed to state a claim under § 1985(3).

Neither Tilton’s original Complaint, nor his proffered

Amended Complaint state a claim upon which relief can

be granted. His claims are repugnant to the First Amend-

ment to the United States Constitution ironically the

Same amendment he feels provides the substantive basis

for the relief he seeks.

I. STATEMENT OF THE CASE

lilton is a high-profile, evangelical minister. He oper-

ated his international television ministry featuring the

“Success’N Life” television show from his Word of Faith

Outreach Center Church (“Tilton’s (¢ hurch”) located just

north of Dallas, Texas. Substantial portions of Tilton’s

daily television broadcasts were devoted to the solicita-

tion of donations from his viewers. A central tenet of

lilton’s “prosperity message” is that donations or “Vows”

are required of his followers to ensure their individual,

spiritual, physical, and financial prosperity.

} } f

On November 21, 1991, Diane Sawyer, a reporter on

ABC Television’s Prime Time Live aired an investigative

report on various evangelists, including Tilton, which

questioned whether Tilton was taking money from his

followers under false pretenses both as to the use to

which the funds would be put and as to the personal

treatment the prayer requests and letters would receive

fhe Prime Time Live report brought the Tilton ministry to

the attention of many United States citizens The people

of Texas, where Tilton’s church is loc ated, were especially

‘nterested in the assertions made against lilton, and com-

plaints were lodged against Tilton with the Texas Attor-

nev General's office.

fhe Texas Attorney General investigated Tilton and

his church for fraud and misrepresentation. Inspection ot

the church’s financial records under authority of the

lexas Deceptive frade Practices Act was attempted.

Rather than disclose the amount of donations Tilton’s

church had received, Tilton challenged the Attorney Gen-

eral’s power to inspect the church’s books. As Tilton was

swift to emphasize in his Petition, the federal court which

heard the matter chastised the Texas Attorney General for

his conduct during the investigation. The court felt the

Attorney General should have acted with an eye toward

less obtrusive means by which the proper ends could be

achieved. What Tilton failed to mention was that the

court ruled in favor of the Attorney General on the sub-

stantive issue of the right of the Attorney General to

inspect the church’s financial records, but held the

inquiry should have been conducted pursuant to the

Texas Non-Profit Corporation Act, under which the Word

of Faith Outreach Center was organized. The Texas Attor-

ney General then requested to review the financial

records of the Word of Faith Outreach Center. Rather than

allow such an inspection, however, the Word of Faith

Outreach Center transferred all of its assets to a newly

formed sole proprietorship of Tilton’s, the Word of Faith

Outreach Center Church, thus blocking any inspection of

their financial records under the Texas Non-Profit Corpo-

ration Act. Conveniently, this was accomplished within

days following the Texas Attorney General’s request to

review the financial records of the Word of Faith Out-

reach Center.

Due to the seriousness of the charges being made

against Tilton, a number of his own followers began to

question the legitimacy of Tilton’s mission and the wis-

dom in sending money to him via his church. Some of the

Respondent attorneys were contacted by hundreds of

Tilton’s former followers, requesting they file suits on

their behalf. These attorneys declined to represent all but

a handful of putative plaintiffs whose claims presented

prima facie cases of extreme and outrageous conduct.

Respondent attorneys C. Tony Wright and David Burrows

had a client referred to them through a bar association

lawyer referral system. As a result, a lawsuit was filed in

Iexas state court by Wright and Burrows, and several

other lawsuits were filed in state and federal courts

against Tilton in Oklahoma and Texas by the other attor-

neys. Tilton filed this lawsuit in an attempt to have a

federal court enjoin litigation of the state court proceed-

ings and to enjoin further “libelous and slanderous state-

ments by the Defendants.”

Il. STATEMENT OF THE ISSUE

[he issue in this case is whether an alleged private

conspiracy to defame a Christian evangelist is a “consti-

tutional tort.” The lower courts, guided by three Supreme

Court decisions concerning § 1985(3) correctly held that it

was not a constitutional tort, especially where, as here,

only economic damages have been alleged. This court

should also recognize that the issues raised by petitioner

have been considered and decided by this Court and

deny certiorari.

A. THE ALLEGATIONS

The basis of the § 1985(3) claim is that the Respon-

dents, (attorneys and lay ministers) conspired to lie about

lilton. As a result of these alleged lies, Tilton complains

he is unable to reach as many people with his message as

before because not as many people watch him on televi-

sion. Tilton claims he is not as able to spread his religion.

This is the essence of his claim that he has been deprived

of his religious freedom.

In Tilton’s Complaint, he alleges the Church's beliefs

are based exclusively on the Word of God as revealed in

the Holy Scriptures (the Bible) and that prosperity

churches, like other churches, believe in tithing and giving

offerings to the church. Although Tilton claims that “con-

ventional Christianity” does not accept his church’s inter-

pretation of Scripture, his beliefs appear to be

mainstream in that he believes the faithful will prosper,

and that miracles still happen.

The Complaint alleges Respondent conspired to

deprive Tilton of his Constitutional right of freedom to

exercise his religion by exposing him to public hatred,

contempt, ridicule and financial injury in order to influ-

ence state action. In Tilton’s Amended Complaint, he

claims his freedom of religion has been infringed because

he does not have as large an audience now, some former

church members think he is a fraud, and he has been

“distracted” from preaching.

Tilton complains that the Defendants conspired to

deprive him of his right to practice his religion by saying

derogatory things about him in the press and by causing

lawsuits to be filed against his ministry. Tilton alleged

that after the Prime Time Live broadcast, nine lawsuits

were filed against him and the church alleging fraud and

emotional distress. He alleged the basis of the claims

were that if Tilton “prays and the prayers are not

answered to an individual’s satisfaction, then Robert

Tilton is liable in tort.” (Pet. for Cert., p. A-28) Complaint

q 14. He claimed the lawsuits were attempts to litigate

N

ecclesiatical issues. (Pet. for Cert., p. A-29) Complaint

q 16. He alleged the attorneys wrongfully solicited clients

to sue him, and filed lawsuits which failed to state claims

against him and the Church. (Pet. for Cert., p. A-33)

Complaint J 28-31. This has allegedly resulted in his

ministry being less effective.

He claims the conspiracy resulted in state action

because the Texas Attorney General began investigating

lilton. There is no claim, however, the acts of the Texas

Attorney General have resulted in a deprivation of Tilton

of the equal protection of the laws, or of equal privileges

and immunities under the law.

B. THE RULINGS

It was undisputed that 42 U.S.C. § 1985(3) was the

sole basis for the court’s jurisdiction. In its June 30, 1992

Order, the Trial Court found it was Tilton’s economic and

commercial interests which were implicated by the

alleged actions of the Respondents, and there was no

allegation that any of the acts of the Respondents actually

impeded Tilton’s ability to practice his religion. Further,

the court held there was no evidence the Respondents’

acts were motivated by religious animus. In its July 9,

1992, Order (on Tilton’s Motion to Reconsider), the Trial

Court restated that Tilton had failed to show any

infringement of his right or ability to practice his religion

and that, in substance, it was the deleterious effect on

lilton’s economic/commercial interests of which he com-

plained. The Court ruled such interests are not protected

by § 1985(3). Additionally, the Court held that lilton

failed to make a colorable showing of state action.

The Tenth Circuit, in affirming the Trial Court,

reviewed the record de novo. It found that Tilton failed to

state a claim for which relief could be granted, inasmuch

as the rights Tilton claimed were violated by the alleged

conspiracy were not protected against private infringe-

ment. These rights included his right to freedom of reli-

gion, guaranteed by the First Amendment, his right to

pursue his chosen profession, guaranteed by the Fifth

and Fourteenth Amendments, and his right to a fair and

impartial jury. (Pet. for Cert. p. A-21)

Il. REASONS FOR DENYING CERTIORARI

Tilton asks this Court to grant Certiorari to review

the state action requirements for a § 1985(3) claim. Not-

withstanding Tilton’s arguments to the contrary, a review

of the pertinent authorities and the Complaint reveals

that Tilton does not assert the type of claim that should

be or is protected by § 1985(3) (and also reveals that

Tilton has recourse for the alleged torts committed by the

Respondents in state court); that the only rights which

Tilton claims are violated by the alleged conspiracy (his

right to freedom of religion and his right to pursue his

chosen profession) are protected only against official

encroachment (state action) and are not protected against

private encroachment; and that Tilton’s allegations of

official encroachment or state action are insufficient. This

Court has already determined that if a purely private

conspiracy is alleged, the state action requirement is ful-

filled only if the rights allegedly being violated are pro-

tected against private encroachment as well as official

encroachment. Additionally, there are numerous other

grounds for dismissing Tilton’s Complaint. This court

should deny Certiorari.

A. ELEMENTS OF A § 1985(3) CLAIM

The elements of a § 1985(3) claim are: 1) a conspiracy;

2) to deprive plaintiff, either directly or indirectly, of the

equal protection of the laws or of equal privileges and

immunities provided thereunder; 3) an act in furtherance

of the conspiracy; and 4) whereby the plaintiff is either

injured in his person or property or deprived of any right

or privilege of a citizen of the United States. Griffin v.

Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338

(1971). Each element must be pleaded in order to state a

claim. Tilton failed to allege any state action, and thus

failed to state a claim. In addition, he failed to allege a

conspiracy, deprivation of a protected right, and

invidious, class-based animus.

A civil conspiracy is the combination of two or more

persons by some concerted action to accomplish some

criminal or unlawful purpose, or to accomplish some

purpose not in itself criminal or unlawful by criminal or

unlawful means. Fink v. Sheridan Bank, 259 F.Supp. 899

(W.D. Okla. 1966). It is well established that there can be

no “conspiracy” where the acts complained of and the

means employed of doing the acts are lawful. Id., Singer v.

Wadman, 745 F.2d 606 (10th Cir. 1984).

With respect to the element of deprivation of “equal

protection under the laws,” the Court, in Griffin, stated

“{t]he language of [of § 1985(3)] requiring an intent to

deprive of equal protection or equal privileges and

immunities, means that there must be some racial, or

10

perhaps otherwise class-based, invidiously discrimina-

tory animus behind the conspirators’ action.” 403 U.S. at

102. The Griffin Court relied on Representative Shel-

labarger’s statement that the law applied only “to the

prevention of deprivations which shall attack the equality

of rights of American citizens; that any violation of the

right, the animus and effect of which is to strike down the

citizen, to the end that he may not enjoy equality of rights

as contrasted with his and other citizens’ rights, shall be

within the scope of the remedies. ... ” Id. at 100. The

equal protection clause means that the “rights of all per-

sons must rest upon the same rule under similar circum-

stances” and that “it applies to the exercise of all the

powers of the state which can affect the individual or his

property ...” Louisville Gas & Electric Co. v. Coleman, 277

U.S. 32, 48 S.Ct. 423, 72 L.Ed. 770 (1928). Thus, in order to

state a claim, Tilton must be within a protected class that

is being discriminated against and must claim he is

unable to practice his religion as freely as other Ameri-

cans. To state a claim, Tilton must also allege he was

deprived of a “right or privilege of a citizen of the United

States.” In United Brotherhood of Carpenters and Joiners of

America, Local 610, AFL-CIO v. Scott, 463 U.S. 825, 836, 103

S.Ct. 3352, 77 L.Ed.2d 1049 (1983), the court states “it is a

very close question whether § 1985(3) was intended to

reach any class-based animus other than animus against

Negroes and those who championed their cause...” The

court then flatly rejected the notion that § 1985(3) reaches

conspiracies motivated by economic or commercial

animus. Were it otherwise,

[T]here would be little basis for concluding that

the statute did not provide a cause of action in a

11

variety of other situations where one economic

group is pitted against another, each having the

intent of injuring or destroying the economic

health of the other. We think that such a con-

struction to the statute, which is at best only

arguable and surely not compelled by either its

language or legislative history, should be

eschewed and that group actions generally rest-

ing on economic motivations should be deemed

beyond the reach of § 1985(3). Economic and

commercial conflicts, we think, are best dealt

with by statutes, federal or state, specifically

addressed to such problems, as well as by the

general law proscribing injuries to persons and

property.

463 U.S. at 839.

With respect to state action, it is helpful to examine

the rights that Tilton claims are being violated. The First

Amendment states in pertinent part: “Congress shall

make no law respecting an establishment of religion, or

prohibiting the free exercise thereof; .... ~ The Four-

teenth Amendment states in pertinent part, “No State

shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States;

nor shall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the

laws.” The Fourteenth Amendment makes the prohibition

found in the First Amendment applicable to the States.

Cantwell v. Connecticut, 310 U.S. 296, 84 L.Ed. 1213, 60

S.Ct. 900 (1940). These Amendments protect Tilton only

against interference with his rights by “Congress” and

the “States.” Tilton, however is not complaining of any

12

—s

acts of Congress or of a state that deprived him of his

freedom of religion.

The Supreme Court has carefully circumscribed the

protection of § 1985(3) to prevent it from becoming a

general federal tort law as can be seen by the Court's

cautious application of the statute. Thus, the Supreme

Court has stated that § 1985(3) also requires proof of the

following:

Our precedents establish that in order to prove a

private conspiracy in violation of the first clause

of § 1985(3), a plaintiff must show, inter alia, (1)

that ‘some racial, or perhaps otherwise class-

based, invidiously discriminatory animus4lay}

behind the conspirators’ action,’ Griffin. v.

Breckenridge, 403 U.S. 88, 102, 29 L.Ed.2d 338, 91

S.Ct. 1790 (1971), and (2) that the conspiracy

‘aimed at interfering with rights’ that are ‘pro-

tected against private, as well as official,

encroachment,’ Carpenters v. Scott, 463 U.S. 825,

-833, 77 L.Ed.2d 1049, 103 S.Ct. 3352 (1983).

Bray v. Alexandria Women’s Health Clinic, 113 S.Ct. 753,

758, 122 L.Ed.2d 34 (1993).

In an emotional appeal to this court, Tilton ignores all

of these requirements and attempts to leave the impres-

sion that, unless he is found to have a claim under

§ 1985(3), he will be left without recourse for a violation

of his “fundamental right to exercise his religion freely.”

Neither his premise that § 1985(3) is his only recourse nor

his assertion that his freedom of religion is being violated

is correct. In support of these assertions, Tilton gives a

disingenuous example of a conspiratorial mass of right-

13

wing Christians who act to deny access to the only syna-

gogue in a city, without the aid of any state or Federal

authority. Tilton asserts that this is precisely the kind of

conspiracy that § 1985(3) was designed to prevent, and

that the ruling of the Tenth Circuit leaves them without

“cure under the statute, and indeed no cure anywhere

else due to the unfortunate twist of fate that the state has

not become involved.”

lilton’s “example” ignores the possible state claims

available to the members of this hypothetical Jewish syn-

agogue, and similarly ignores the state libel and slander

claims available to Tilton. It is strikingly similar to Bray,

which held there was no such claim under § 1985(3) when

abortion clinics are blockaded. The example also ignores

the clear legislative intent of the drafters of § 1983(3) that

the statute not apply to

[A]ll tortious, conspiratorial interferences with

the rights of others. For, though the supporters

of the legislation insisted on coverage of private

conspiracies, they were equally emphatic that

they did not believe, in the words of Represen-

tative Cook, ‘that Congress has a right to punish

an assault and battery when committed by two

Or more persons.’

Griffin, 403 U.S. at 100. It is exactly the need to limit the

§ 1985(3) claim that gives rise to the requirements enunci-

ated by the court in Griffin, and by the subsequent courts

in Scott-and Bray which preclude Tilton’s claim.

14

B. THIS COURT HAS ALREADY DETERMINED

THE EXACT ISSUE RAISED BY PETITIONER

lilton argues that he presents an issue that was not

decided by the court in Bray. This attempt to justify an

exercise of this Court’s power of supervision is without

merit and can only be supported by completely ignoring

the mandates of Griffin, Scott and Bray. Tilton engages in

a semantic fantasy to argue that the issue now before the

Court was not decided by Bray. He characterizes the issue

presented as “whether allegations of a conspiracy

between private individuals to deprive a person of his

religious freedoms, a ‘right or privilege of a citizen of the

United States,’ are covered by § 1985(3).” The Court, in

Bray, recognized that a § 1985(3) claim requires an intent

to deprive persons of a “right guaranteed against private

impairment,” Bray, 113 S.Ct. at 762, and that the impair-

ment of the right must be a “conscious objective of the

enterprise.” Id. at 764. Thus while Bray did not deal with

“religious freedoms,” its holding that there must be a

conspiracy to deprive persons of a “right guaranteed

against private impairment” directly addresses the issue

as framed by Tilton.

Ihe Amendments that Tilton claims under (the First,

Fifth, and Fourteenth Amendments) protect against offi-

cial encroachment only.

Ihe Equal Protection Clause of the Fourteenth

Amendment prohibits any State from denying

any person the equal protection of the laws. The

First Amendment, which by virtue of the Due

Process Clause of the Fourteenth Amendment

now applies to state governments and their offi-

cials, prohibits either Congress or a State from

15

making any ‘law . . . abridging the freedom of

speech, .. . or the right of the people to peace-

ably assemble.’

Scott, 463 U.S. at 831. This observation is equally true of

the freedom of religion which is also found in the First

Amendment. Moreover, the Supreme Court has only rec-

ognized two sources of Congressional power to reach a

private conspiracy, the Thirteenth Amendment and the

Right to Travel, neither of which are implicated here.

Griffin, 403 U.S. at 104-106. Thus,-it-is clear that the

precise issue here, i.e., whether the First Amendment

right to freedom of religion is protected against purely

private encroachment has been answered negatively by

Griffin, Scott and Bray.

In a novel argument to circumvent the clear holdings

of Griffin, Scott and Bray, Tilton asserts that his rights to

freedom of religion and freedom of association do not

have their source in the First Amendment, “are neither

granted nor established by that amendment,” and are, in

fact, inherent rights that are possessed by every human

and “predate the formation of our government.” If this is

true, then § 1985(3) cannot provide the vehicle for any

remedy sought by Tilton since it protects only against

deprivation of rights provided by law. This argument is

at odds with Scott, and the clear language of § 1985(3).

[he Scott court recognized that the rights protected

against by § 1985(3) must come from other enumerated

sources, and those enumerated sources were state, Fed-

eral Constitutional or federal statutory law. Scott, 463 U.S.

at 834. Moreover § 1985(3) protects against the depriva-

tion of “any person or class of persons of the equal

16

protection of the laws, or of equal privileges and immu-

nities under the laws.” (emphasis added.)

he requirement that a § 1985(3) claim be based on a

violation of a right granted by the laws was also empha-

sized by this court in Collins v. Hardyman, 341 U.S. 651, 71

S.Ct. 937, 95 L.Ed. 1253 (1951). In rejecting the notion that

a conspiracy to interfere with a planned political meeting

was actionable under § 1985(3), the court stated:

Such private discrimination is not inequality

before the law unless there is some manipula-

tion of the law or its agencies to give sanction or

sanctuary for doing so. Plaintiffs’ rights were

certainly invaded, disregarded, and lawlessly

violated, but neither their rights nor their equal

ity of rights under the law have been, or were

intended to be, denied or impaired. Their rights

under the laws and to protection of the laws

remain untouched and equal to the rights of

every other Californian, and may be vindicated

in the same way and with the same effect as

those of any other citizen

ld. at 661-662. Tilton does not base his inherent, natural

right theory on any law (Constitution or statute), and

§ 1985{3), by its terms, does not apply to inherent or

natural rights. Thus even if Tilton does possess an “inher

ent right” to freedom of religion, such right is not pro-

tected under §& 1985(3)

His reliance on the right to “Life, Liberty and the

Pursuit of Happiness” as contained in the Declaration of

Independence is also insupportable. Tilton does not cite

any case which applies § 1985(3) to inherent rights, or, in

fact any rights that are not found in the Constitution or in

17

federal statutes. Tilton’s inherent right theory is also

defeated by his own Complaint (Pet. for Cert. p. A-61),

and indeed his own Petition for Certiorari (Pet. for Cert.

pp. 17, 27) wherein he argues that his First and Four-

teenth Amendment rights are being violated.

filton’s Petition for Certiorari presents no question

that “has not yet been ruled on,” and the Tenth Circuit

correctly interpreted not only Bray, but also Griffin and

Scott. Tilton is not requesting guidance from this Court on

an unanswered question of law, but he is actually

requesting this Court to reconsider an issue reviewed

within the past eleven months in Bray. The only reason

that can be discerned from Tilton’s brief for this extraor-

dinary request is that he is in disagreement with this

Court's rulings in Bray, Griffin and Scott which limit the

scope of § 1985(3) to exclude the claims asserted

lilton is actually requesting that Bray and its prede-

cessors be overruled. Several statements in his brief make

it obvious: “The Majority, through their opinion in Bray,

have seemingly set in concreie the notion that a private

conspiracy to violate a ‘First Amendment’ right cannot be

punishable under [§ 1985(3)], in that a “First Amend-

ment” right is only protectable against state interference.

[his interpretation is unfortunate and incorrect; r

(Pet. for Cert. p. 11); “The argument of Bray, and the

fenth Circuit’s reliance on that argument, that a § 1985(3)

private conspiracy cannot reach a ‘right that is by defini-

tion a right only against state interference,’ is therefore

tlawed.” (Pet. for Cert. p. 16). Tilton presents no issue left

unanswered by Bray, but merely disagrees with Bray. This

is demonstrated by Tilton’s repeated reliance on the dis-

senting opinions in Bray and the tact that he virtually

18

ignores the six-judge majority on the issue of official

encroachment. Furthermore, he mischaracterizes the

holding in Bray, since this court has previously ruled that

§ 1985(3) requires either deprivation of a right protected

against from private action, or state action. See, e.g. Col

lins, Griffin and Scott.

liltor, provides no compelling reason, either legally

or factually, for this court to reconsider the exact issue

that was considered in Bray. In fact, Tilton would have

this Court overrule Collins, Griffin and Scott as well, since

each construes § 1985(3) to require the encroachment of a

right protected against private infringement where the

CONSpPiIracy 1S purely private.

C. THERE IS NO LEGITIMATE CONFLICT

BETWEEN JURISDICTIONS

Tilton also attempts to justify this Court’s review of

an issue that it has already decided by “manufacturing” a

conflict between the jurisdictions. This attempt is

unavailing because even if there is a conflict among the

jurisdictions as to “whether a conspiracy between private

individuals to deny freedom of religion is actionable

under 42 U.S.C. § 1985(3),” this conflict has been resolved

by this Court in Scott and Bray, both of which were

decided after all of the cases relied on by Tilton for this

proposition.

19

1. Taylor is not applicable because it was

decided before Scott

The gist of this argument is that the Tenth Circuit's

decision in this case is in conflict with its decision in

Taylor v. Gilmartin, 686 F.2d 1346 (10th Cir. 1983). Taylor,

however, provides no support for Tilton whatsoever, both

because of the fact-specific ruling in Taylor and the time

period in which it was decided.

The Taylor case was decided in 1982, before the

Supreme Court decided the seminal § 1985(3) case, Car-

penters v. Scott, wherein the Court explicitly required that

a private conspiracy be “aimed at interfering with rights”

that are “protected against private, as well as official,

encroachment,” in order that a claim be stated under

§ 1985(3). Scott, 463 U.S. at 833. That court also recog-

nized limits on the scope of plaintiffs who have standing

to sue under § 1985(3). “It is a close question whether

Section 1985(3) was intended to reach any class-based

animus other than animus against Negroes, and those

who championed their cause.” Id. at 836. After Scott, the

Tenth Circuit considered the scope of a § 1985(3) claim

and declined to extend § 1985(3) to handicapped individ-

uals as they did not form a cognizable class. Wilhelm v.

Continental Title Co., 720 F.2d 1173 (10th Cir. 1983).

2. The facts in Taylor support a finding of

invidious class based animus while the

facts in the present case do not

The Taylor court specifically found the “invidiously

discriminatory animus” required by Griffin, which is not

present in this case. Taylor involved religious deprogram-

mers who obtained an erroneous court order granting

them protective custody over a 21-year-old member of a

Catholic religious order. The deprogrammers transported

the believer from Oklahoma City to Akron, Ohio, where

he was held in a motel room against his will for one

week, then transferred to Arizona where he escaped.

During his confinement, the deprogrammers attempted

to coerce the believer into abandoning his religious

beliefs by means of various acts of brainwashing and

torture. The believer was beaten, yelled at, threatened

with extended incarceration in jail, threatened with shock

treatment, deprived of sleep, doused with water, had

lights shined in his eyes, and was stripped naked, shaven

and had his hair cut off. Taylor, 686 F.2d at 1349.

The Tenth Circuit stated:

Is there a class-based invidious discrimination

under the meaning of the Griffin decision? It

should be emphasized that these defendants are

professionals. They perform this service for

money and they spend a significant amount of

time on it. The record shows that their conduct

is Odious and has the effect of depriving the

victim of important rights — his liberty, his free-

dom, his right to practice his religion, among

other rights.

ld.

The holding by the Tenth Circuit is clearly a factually

specific, result-oriented, teleological finding which

should not be applied to the facts in this case. Both the

Respondents’ acts and the Petitioner's claims distinguish

Taylor from this case. First, the nature of the conduct by

2]

—_

the Defendants in Taylor is far more odious than is

alleged by Tilton. Tilton was not subjected to any direct

coercion as was Mr. Taylor. Tilton was not physically

restrained or injured, or deprived of any opportunity to

exercise his religion as faylor was.

Che Taylor court applied § 1985(3) to instances involv-

ing physical injury and actual physical restraint of the free

exercise of the plaintiff’s religion, along with forced inter-

state travel. Taylor was an individual member of a relj-

gious sect who was kidnapped, tortured and coerced for

the purpose of renouncing his religious beliefs. The Tenth

Circuit would not likely have stretched the parameters of

S 1985(3) had the behavior of the defendants not been so

clearly demonstrative of class-based invidious discrimi-

nation. The Taylor case should be recognized as the result-

oriented holding that it is, and not be applied to a set of

facts which are far afield from those the Tenth Circuit was

reviewing.

In contrast, all Tilton can and has alleged is that the

co-Respondents libeled and/or slandered him and/or

reported his activities to the authorities which caused a

reduction in the donations made to his church. The

alleged acts by the Respondents were not invidious. The

Supreme Court has defined invidious as, “tending to

excite odium, ill will, or envy; likely to give offense; esp.,

unjustly and irritatingly discriminating.” Bray, 113 S.Ct

at 762, (citing Webster’s Second International Dictionary

1306 (1954)). Tilton does not and cannot allege that the

facially legitimate claims against him are a subterfuge for

a secret religious animus on the part of the Respondents.

N

No

i

The Respondents’ acts were reascnably related to a

legitimate purpose. Richardson is an attorney who has

sued Tilton under numerous allegations of fraud and

intentional infliction of emotional distress. An attempt by

an attorney to seek legal recompense for aggrieved citi-

zens should hardly be considered irrational or illegiti-

mate. In Taylor v. Nichols, 558 F.2d 561 (10th Cir. 1977), the

court held that misuse of state process as a result of an

improper appointment of a special prosecutor, and the

prosecution of a meritless criminal action was not a con-

stitutional violation. The acts of filing a claim and testifying

at trial do not constitute state action. Id. at 564. These are

private acts. Further, the plaintiff failed to make any

showing that he was denied equal protection of the laws.

There was no showing that others had not been pros-

ecuted in similar circumstances or that groups other than

police officers have not been so prosecuted.

Respondents Anthony and Guetzlaff have investi-

gated Tilton because they feel he is defrauding his fol-

lowers concerning the use of their donations. The Prime

Time Live expose was based on the premise that Tilton

takes money from people who cannot afford to contribute

and uses the money to support a lavish lifestyle. Freedom

of the press to investigate public figures is a legitimate

end. Tilton has not and cannot allege that the accusations

against him are discriminatory in any way. He has not

and cannot claim the Respondents would not sue and

speak out against his behavior if he were a Moonie,

atheist, Baptist or agnostic. In fact, Tilton is only one of

several television evangelists who were featured in the

Prime Time Live report.

23

Despite its allegations of animus against “prosperity

churches,” the Complaint makes it clear the Respondents

are not motivated by Tilton’s religious message, but by

his secular acts. Tilton has shown neither the requisite

level of invidious action, nor animus motivated by his

religious beliefs. Thus, the present case is completely

distinguishable from Taylor. There was invidious class-

based animus in Taylor, and there is no invidious class-

based animus here. Tilton’s assertion that the Tenth Cir-

cuit’s decision in this case and its decision in Taylor are at

odds is simply insupportable.

D. TILTON’S ASSERTION THAT THERE IS

STATE ACTION MERELY RESTATES THE

MERITS OF TILTON’S CLAIM AND DOES

NOT PROVIDE A REASON FOR THIS COURT

TO GRANT CERTIORARI

Tilton makes a two part argument in his Petition for

Certiorari: 1) that state action is unnecessary to his claim

even if it is merely a private conspiracy; and 2) that his

Complaint alleges a conspiracy which “influences” the

state, and therefore states a claim under § 1985(3). Tilton’s

argument is “fact-based” and does not provide any rea-

son for this Court to review the findings of the Tenth

Circuit and the Trial Court. “A petition for a writ of

certiorari will be granted only when there are special and

important reasons therefor.” Sup.Ct.R. 10.1. While Tilton

suggests, erroneously, that there is a basis for a grant of

certiorari on his first argument, he does not even attempt

to argue that there is a “special and important reason” to

consider his second argument which merely rehashes the

merits of his case already rejected by the lower courts

24

Tilton argues that under the reasoning in Scott, a

private conspiracy that is aimed to influence the activity

of the state is actionable under § 1985(3). Scott, 463 U.S. at

830 (“an alleged conspiracy to infringe First Amendment

rights is not a violation of § 1985(3) unless it is proved

that the State is involved in the conspiracy or that the aim

of the conspiracy is to influence the activity of the

State.”). Tilton’s reading of Scott was rejected by the

Court in Bray, when it noted a specific requirement that

the conspiracy be aimed at interfering “with rights that

are protected against private, as well as official encroach-

ment.” Bray, 113 S.Ct. at 764. Thus, under Bray, an intent

to influence the activity of the state is insufficient to state

a claim under § 1985(3) without a conspiracy aimed at

interfering with rights that are protected against private

encroachment. Tilton’s assertion that “Bray does not

address the situation here” is intellectually dishonest.

Bray states that “in order to prove a private conspiracy in

violation of the first clause of § 1985(3), a plaintiff must

show, inter alia, ... that the conspiracy ‘aimed at interfer-

ing with rights’ that are protected against private, as well

as official, encroachment...” Id. With this argument, too,

lilton is requesting this Court to overrule its recent ruling

in Bray.

Additionally, Tilton’s argument that there is suffi-

cient state action to prevent the asserted conspiracy from

being a purely private one is without merit. The First

Amendment guarantees freedom from interference by the

federal government. By incorporation into the due pro-

cess clause of the Fourteenth Amendment, these guaran-

tees also run against the state. Gitlow v. New York, 268 U.S.

652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925); Edwards v. South

25

Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963).

The Fourteenth Amendment erects no shield against

merely private conduct, however discriininating or

wrongful. Shelley v. Kramer, 334 U.S. 1, 68 S.Ct. 836, 92

L.Ed. 1161 (1948). The United States Supreme Court held

the criminal counterpart of § 1985(3) unconstitutional

because such a law, directed exclusively against the

action of private persons, without reference to the laws of

the State or their administration by its officers is not

warranted by any clause in the Fourteenth Amendment.

United States v. Harris, 106 U.S. 629, 1 S.Ct. 601, 27 L.Ed.

290 (1882). Even in United States v. Guest, 383 U.S. 745, 86

S.Ct. 1170, 16 L.Ed.2d 239 (1966), the court notes that the

Fourteenth Amendment protects the individual against

state action, not wrongs by individuals. Clearly, there are

Constitutionality problems with § 1985(3) if it sweeps as

broadly as Tilton claims. He cites no authority which

permits the due process clause to reach a purely private

conspiracy.

In Lugar v. Edmondson Oil Co, 457 U.S. 922, 102 S.Ct.

2744, 73 L.Ed.2d 482 (1982), the plaintiff brought a § 1983

claim as a result of a prejudgment attachment. The

Supreme Court distinguishes between “state action” and

the “color of state law” noting that state action is required

for a claim to be actionable under the First and Four-

teenth Amendments. The distinction is only applicable

where, as here, the defendant is not a state official. The

plaintiff claimed that a private party defendant violated

his due process rights by abusing or misusing attachment

procedures and that the procedure was unconstitutional.

The court stated that there is no state action where the defen-

dants abuse the courts or the laws. Id. at 2756. An action

instituted by a private party, without more, is not state

action. Under this holding, the filing of lawsuits by pri-

vate parties can not be “state action.” See also, Flagg

Brothers, Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56

L.Ed.2d 185 (1978).

Moreover, the government action must relate to the

discriminatory practices alleged. Moose Lodge No. 107 v.

Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972).

Governmental decisions unconnected with the discrimi-

natory acts are insufficient for “state action.” Here, the

only “governmental action” was an attempt to get the

financial records of Tilton’s church. The Texas Attorney

General was held entitled to inspect the records, even

though the attempt was made under the wrong statute.

Moreover, because Tilton changed the organizational

basis of his church (from non-profit corporation to sole

proprietorship), the Attorney General never received

access to Tilton’s books and certainly was never able to

“close down” Tilton’s church.

The cases Tilton relies on do not support his assertion

that there is “state action” alleged in his Complaint.

Tilton claims that state action may arise from filing of

lawsuits, citing Paul v. Watchtower Bible and Tract Society,

819 F.2d 875 (9th Cir. 1987), cert. dented, 484 U.S.926. Suing

a religious figure for fraud does not constitute state

action. Watchtower merely holds that the imposition of

damages under state law may constitute state action. In

this case there has been no imposition of damages under

state law, and no action by any court. As noted, the

Supreme Court has rejected the notion that state action

results from the use of the courts. New York Times Co. v.

Suilivan, 376 U.S. 254, 265 (1964) also does not support

27

Tilton’s claim. Although “a state court's application of

State law in a way that impinges First Amendment

rights” may be state action, that is not what we have here.

lilton’s Complaint does not contain a single allegation

that any court has applied state law and infringed on his

rights. His allegations are rather that his rights have been

affected by the mere filing of a lawsuit. Such an act does

not constitute state action.

E. OTHER LEGITIMATE REASONS EXIST FOR

UPHOLDING THE RULINGS OF THE TRIAL

COURT AND THE TENTH CIRCUIT

Tilton’s Complaint is deficient in each of the other

elements necessary to a § 1985(3) claim. Tilton does not

come within the carefully circumscribed protection of

§ 1985(3). Tilton, as a minister of a Prosperity church,

does not belong to any protected class. Moreover, Tilton

has not been deprived of his rights to freedom of religion.

He complains merely that the size of his Viewing audi-

ence is diminished and that his effectiveness as a minister

Is impaired. In fact, he is free to continue to practice his

religion and has done so. The only real injury Tilton

alleges is economic, through reduction of vows (dona-

tions) to his church. Such economically motivated con-

spiracies are not protected by § 1985(3), Scott 463 U.S. at

839, even if Tilton had standing to sue for such reductions

in his own name.

Lastly, Tilton’s right to freedom of religion must be

considered in conjunction with the First Amendment

rights of the Respondents. The right to petition the gov-

ernment is also guaranteed by the First Amendment. This

28

right is paramount, even when asserted by a group or

association in a concerted effort to destroy competition

by exerting influence on the government. See, e.g., East

ern Railroad Presidents Conference v. Noerr Motor Freight,

Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961),

where the court ruled that a publicity campaign to influ-

ence government action is political activity, noting that:

It is inevitable, whenever an attempt is made to

influence legislation by a campaign of publicity,

that an incidental effect of that campaign may

be the infliction of some direct injury upon the

interests of the party against whom the cam-

paign is directed. And it seems equally inevita-

ble that those conducting the campaign would

be aware of, and possibly even pleased by, the

prospect of such injury. To hold that the know-

ing infliction of such injury renders the cam-

paign itself illegal would thus be tantamount to

outlawing all such campaigns

465 U.S. at 143, 144

-

In McDonald v. Smith, 472 U.S. 479, 105 S.Ct. 2787,

L.Ed.2d 384 (1985), the court states that the right to

S6

~ ——prtition the government includes the right to file law-

suits. This right does not include the right to defame.

Smith v. McDonald, 895 F.2d 147 (4th Cir. 1990). Presuma-

bly, defamation, if actionable, may be pursued tn the state

courts. First Amendment rights are equal. Tilton may not

claim that his right to freely practice his religion is supe-

rior to the defendants rights to petition the government,

or to speak freely.

IV. CONCLUSION

lilton has provided no reason for this Court to

review the issues he has “presented. Bray, properly

applied, is completely dispositive of his claims. To state a

§ 1985(3) claim against a private conspiracy, which Tilton

attempts to do, Tilton must allege infringement of a right

protected against private infringement. The First, Fifth, and

Fourteenth Amendments do not provide rights that are

protected against private infringement. Moreover, the

conduct complained of by Tilton does not constitute

invidious discriminatory animus against a protected

class. Tilton is attempting to use § 1985(3) as a means of

asserting a general tort claim in federal court which has

been disapproved of by this Court. “A burglar does not

violate the Fourth Amendment. for example, nor does a

mugger violate the Fourteenth.” Bray, 113 S.Ct. at 774.

Similarly, Tilton’s allegations of libel and slander do not

constitute a claim under § 1985(3). Tilton’s Petition for

Certiorari should be denied

Respectfully submitted,

FrtpMan, Hatt, FRANDEN,

Wooparp & Farris

Joseru R. Farris, OBA #2835

Counsel of Record

Jopy R. NatHan, OBA #11685

|. Davipo Mustain, OBA #13132

525 South Main, Suite 1400

Tulsa, OK 74103-4523

lelephone: 918/583-7129

Facsimile: 918/584-3814

Counsel for Respondent

Gary L. Richardson

[Additional Counsel Listed On Inside Coy er|